method of proving inter-State records, as provided by the act of Congress, has been construed to apply only to the proceedings of courts of record, and is, therefore, inapplicable, in general, to the courts of justices of the peace. But where, as in some of the States, justice's courts are courts of record, it is decided in reference to their records, that they come within the provisions of the act, and may be certified or authenticated in accordance therewith.2 Records of Appellate Court Including Justice's Proceedings. And, notwithstanding the proceedings of justices' courts are not ordinarily held to be within the meaning of the act of Congress, and may not be authenticated under the same with the same claim to faith and credit, as the proceedings of courts of record and general jurisdiction, it is, nevertheless, decided that when by appeal, or other legal process, the written proceedings of justices' courts have gotten into the courts of record and general jurisdiction, and therein are matured into judgment, the proceedings of the latter court including those from the justice's court, are together as an entirety within the provisions of the statute, and may be anthenticated as therein provided, and thereupon be entitled to the same faith and credit in the courts of other States as is given to the original proceedings of the ordinary State courts, when so authenticated.3 Courts of Chancery and Probate Courts. Courts of chancery, however, and of probate, are as strictly within the meaning and intention of the act of Congress as are the ordinary courts of common law. 4 Authentication Conclusive. If the State or Territorial record or document be duly authenticated, as between the State courts, or State and Territorial courts, in accordance with said acts of Congress, then no evidence is admissible to show that the attestation is not in due form of law, or to invalidate the legal authenticity thereof.5 Records Where New State is Formed Out of Old One. Where a new State is formed out of a part of an old one, and suit is brought in still another State on the transcript of a judgment rendered before such new State was formed, in a county subsequently included in such new State, it is held that a certificate of the clerk of the circuit court of the county certifying that the State was divided and a new State formed of a portion thereof including the county wherein the judgment was rendered; that the court that rendered the judgment was abolished or discontinued, and its records and proceedings transferred to said circuit court of the new State, and that he, as clerk of said circuit court, is the proper and lawful custodian of said records and proceedings of the court wherein the judgment was rendered, such certificate being under the signature of the clerk and seal of said court; and the same being further authenticated by the certificate of the sole judge of said circuit court, stating that the attestation of the clerk is in due form, and the person certifying as clerk is the clerk of said court, the record and authentication. thereof were held sufficient to maintain the action.1 III. PROOF OF STATUTE LAWS OF STATES UNDER THE ACT OF CONGRESS. Proof of State Statutes. Under the act of Congress of May 26, 1790, the statute laws of the several States are provable and admissible in evidence in the courts of the States respectively, by having the seal of the State annexed thereto.2 When thus authenticated by the seal of State, the presumption is that they were so sealed by the proper keeper of the seal, and therefore no other proof or authentication of the genuineness of such laws is required.3 Statutes Pleaded. Whichever party to a judicial proceeding Mills. Duryee, 7 Cr. 481; Mayhew v. Thatcher, 6 Wheat. 129. Darrah v. Watson, 36 Iowa, 116. 21 Stat. at Large 122, § 9; R. S. of U. S. 2d ed. §§ 905, 906. 3 United States v. Johns, 4 Dal. 412; S. C., 1 Wash. C. C. 363; United States v. The Amedy, 11 Wheat. 392; Leland v. Wilkinson, 6 Pet. 317; 1 Greenl. Ev. § 480; 1 Robinson's Practice, 252. relies on a statute law of another State to effect a recovery or a defense, or to establish any facts, must set out and plead such statute as in pleading any fact, and must make proof thereof. A mere averment of the statute and a right claimed under it is not enough; the statute itself must be substantially set out, so that the court, if it is proven, may judge of and decide the effect thereof.1 State Courts do Not Take Judicial Notice of Other States' StatFor the courts of a State cannot take judicial notice of the statute laws of other States. The party claiming the benefit thereof must make proof of them as matters of fact; and to enable that to be done, they must be pleaded. They must be set out at length and pleaded, so far as relied on, and then proven in the manner prescribed by the act of Congress, or else in such other manner, if any, as is permissible by the laws of the State where such proof is to be made. It will not do, in pleading them, to refer to them merely by their title and date of enactment or approval; they must be set out so as to enable the court to see and know what they are, and to judge for itself of their legal effect.3 If The ruling in Ohio is, that their existence is matter of fact for decision of the jury, but when shown to exist and placed in evidence, their construction is for the court. But, query. proven by documentary evidence, as by certificate and seal of the Secretary of State, under the act of Congress, in case of statute laws, if their existence is not then a question for the court? Nor Notice of Local Officers. And as State courts of one State do not take judicial notice of the laws of another State,5 so they do not of local officers; as, for instance, that there are county judges, or that they have lawful authority to administer oaths, or exercise particular functions, except as to notaries public, whose acts and seals are everywhere recognized.1 Ordinarily there must be some evidence of the existence of such officers, and of the official functions and powers of those who hold them. Their authority to act must be authenticated.2 Therefore, where verification of pleadings is required by law, an affidavit, or what purports to be one, without more, to a pleading purporting to have been made in another State before a county judge, with no authentication of his signature or other evidence of his official existence or of its genuineness, such pleading will be treated as an unsworn pleading, and may be so regarded in responding to the same by the adverse party.3 Common Law. And although, in regard to foreign laws, it is a principle, if nothing to the contrary is shown, that the common law of another State is presumed to be the same as the common law of the forum where brought in question, yet this presumption as to the laws of a State does not exist in regard to its statute laws. There are some cases tending towards such a conclusion, but in the language of RAPALLO, J., in McCulloch v. Norwood, "there is no authoritative decision to that effect."4 If there were any reason to doubt upon the subject, we may regard this decision, which is so recent as in 1874, and by authority so high and learned, as putting such doubt at rest, and as settling the doctine against such presumption as regards statute laws. This unwritten or common law of a State may also be proven by the books of reports of cases adjudged in its courts." IV. PROOF OF STATE LAWS AS AT COMMON LAW AND UNDER STATE STATUTES. The method of making proof of the laws of the States in the courts of others, prescribed by the act of Congress of 25th of May, 1790, is merely cumulative, and is not inhibitory of such Walsh o. Dart, 12 Wis. 635. Fellows. Pres. & Trust. of Menasha, 11 Wis. 558. 3 Fellows v. Pres. & Trust. of Menasha, 11 Wis. 558. 458 N. Y. 562, 567, modifying the decision in the same case made in the court below and reported in 4 Jones & Spencer, 180. See, also, Hull v. Augustine, 23 Wis. 383; 1 Robinson's Practice, 25. 5 Cragin v. Lamkin, 7 Allen, 395. other proof within the rules of law, or as may be tolerated as more convenient by any of the States.1 The proof is to the court. The sufficiency of proof of foreign laws, as also their pertinency to the issue, and their legal interpretation and effect, are all matters for the decision of the court, and not the jury. But although the proof is to be made to the court, that it may judge of the legal sufficiency of the proof, and of the pertinency and admissibility of the laws so relied upon, yet such laws of other States are to be proven as facts.3 The States may relax, but not increase the requirements of the Act of Congress. Thus where, as in Iowa, a statute exists allowing such proof of statute laws of another State to be made by production of printed copies thereof, purporting to be made and published under authority of such other State, it is held that such proof is admissible as presumptive evidence of the law. And proof of the unwritten laws of another State may be made by the testimony of persons familiar with such laws. And so it may be proved, as in Iowa, by persons familiar with courts and their practice of other States, that books of statute law produced, are regarded and acted on by the courts of another State as statute laws thereof." And so may the practice and uses of such courts be proven in like manner by testimony of persons well acquainted therewith." v. Wash, Breese, 16. 4 Webster v. Russ, 23 Iowa, 269. See, also, to the same effect, Commercial & Farmer's Bank v. Patterson, 2 Cr. C. C. 346; Rockville & Washington Turnpike Road Co. v. Andrews, 2 Cr. C. C. 451. Webster v. Russ, 23 Iowa, 269. Greason v. Davis, 9 Iowa, 219. Webster v. Russ, 23 Iowa, 269; Crafts v. Clark, 38 Iowa, 237. |